State Regulation Of Private Schools: The State as 'Superior Educator' Threatens Educational Freedom

Educational freedom is threatened today by a single gross
presumption: the idea that the state is the sole or superior educator.
One can easily see how this presumption threatens educational freedom.
First, government uses its taxing powers to create a system of schools
that, because of their quality, or their philosophic or moral
characteristics, may not be acceptable to all citizens. Under truancy
laws containing criminal sanctions, however, all children must attend
these schools, or they must attend nongovernment schools that, under
the presumption that the state is the superior educator, are under
government control. These nonpublic schools may enjoy a measure of
freedom, but it is freedom-on-a-leash, the leash firmly held by
government.

It follows that all the basic elements of education must reflect
whatever government administrators deem to be sound "public
policy"--what they feel the needs and dispositions of the populace
should be, and what they feel is the best way to form a "competent"
citizenry. These basic elements necessarily embrace curriculum, teacher
qualifications, teaching methods, and textbooks. Flowing from this
approach is the inevitable fulfillment of the prediction Disraeli made
in 1839 when he criticized the attempt to place English education in
the hands of the bureaucracy: "All children would be thrown into the
same mint, and all would come out with the same impress and
superscription."

But of course if government knows best, then it should control all
education--that is, if it knows best what is moral and wise, knows best
the human mind and spirit, knows best what is good for children, and
knows best how learning takes place. And if it thinks it knows best, it
should stop pretending that it doesn't really want to control
everything in sight.

Supporters of nongovernment education accept the idea that some laws
affecting schools are necessary for the common good. A reasonable fire,
safety, building, or sanitary ordinance, or a law imposing those few,
universally accepted "basics" such as English, mathematics, and civics,
cause no objections. But statutes that install the government
educational bureaucracy as the ultimate supervisor of all nongovernment
education are indeed the cause of the darkest concerns.

The unhappy fact is that all too many state boards of education and
state education departments are aggressively seeking to control
nonpublic schools. But these are schools that the state did not found
and does not fund. By and large, they are amenable to certain
reasonable statutes, but they will not agree that state educational
bureaucracies shall license them, supervise them, decide what they will
teach, who will teach it, and how things shall be taught.

When the state education officials seek to impose their recipes for
education on private schools, many of these schools have stated in
court that they do not see the government schools as particularly
desirable models. And when the state educators warn judges of the
great disadvantage to children that will result if the state's
education mandates are not followed, the embarrassing question arises:
Are the public schools, with 100 percent governmental control,
succeeding in producing high-quality education?

Amish, Mennonite, fundamentalist, and evangelical schools have all
been forced into court in recent years to protect their right to exist
without overreaching regulation by the state. These cases have
highlighted three features of the "governance" problem:

Vagueness in regulatory laws.

Right now, the state of Michigan is attempting to shut down schools operated by two fundamentalist churches. These are excellent schools whose students achieve well on
nationally standardized tests. They are supported 100 percent by the
congregations that founded them, without one cent of state aid or the
benefit of any state programs. The schools are the enthusiastic choice
of mature, intelligent, and caring parents. The state says, however,
that it must extinguish these marvelous voluntary enterprises because
state statutes require it to.

The statutes the state cites are wonderfully confusing. They
provide, for example, that the courses of study in a nonpublic school
must be "of the same standard as provided by the general school laws of
the state." But the "general school laws of the state" say nothing
about "standards." During the trial in the Michigan case, we thought it
would be of interest to find out what state officials themselves
thought "standards" means. Some said it means "quality," others said it
means "courses," others said it means the specific courses of "math,
science, English, and social studies," while yet another said it means
just "government and civics." In other words, as the Supreme Court put
it in a case on statutory vagueness, here was terminology "wholly
lacking in 'terms susceptible of objective measurements' ... Men of
common intelligence must necessarily guess at its meaning and differ as
to its application. ..." Yet on the thin pretext of this and other
equally vague language, two fine religious schools in Michigan are
threatened with being shut down.

The unhappy fact is that a very large number of state laws
conferring on state agencies regulatory powers over private schools are
unconstitutionally vague, or are overly broad, or constitute limitless
delegations of legislative power to these agencies. And when we turn to
the regulatory product of many of the agencies, the picture is even
worse. Usually, the problem is rooted in the seemingly profound
compulsion of a number of state bureaucracies to multiply their
controls over all education.

Here, one would think that restraint and modesty would prevail: Do
those education bureaucracies not have enough of a challenge to get
their own houses in order? Yet some states, while faced with a failing
public-education system, supported by taxpayers in a time of economic
distress, have nonetheless expended vast sums and enormous energy on
court cases attacking Christian congregations that have been so deeply
interested in education that they established good schools--indeed,
schools that save local taxpayers $600 to $1,000 in per-pupil costs per
year.

Governmental prescriptions versus school results.

In the principal court cases in which state education agencies have sought to close
nonpublic schools, the schools have been able to demonstrate the good
education results they are achieving. They then challenge the state
agencies and say, "Are you, in the government schools, producing such
good results?" The state authorities duck this question and instead
protest, "We have the recipe for good education. Follow our recipe, and
good education invariably results. Fail to follow it, and bad education
results. Since you fail to follow our prescription, you will be
educating badly, and therefore, for the sake of children, you must be
shut down."

Thus, in these cases, the state's argument has been limited to
insisting on the quality of its recipe, while the nonpublic schools
have insisted that the proof is in the results. As the private-school
researcher Donald A. Erickson has put it: "The test of education is
simply this: Has learning resulted?" And that is simply unanswerable
common sense.

The state's "recipe" typically involves at least three matters:
state certification of nonpublic-school teachers; state prescription of
curriculum; and school licensing.

The pretext for teacher certification is the argument that it
assures quality teaching. The argument has a plausible ring. Don't we
require doctors to be certified? Lawyers? Electricians? But, as has
been well established by expert testimony in cases in Ohio, Kentucky,
Maine, and Michigan, teacher certification does not assure good
teaching.

The education scholar Russell Kirk has pointed to factors in
teaching that do indicate that learning will occur: talent, literacy,
love of children, and a sacrificial dedication to teaching them.
Teachers in nonpublic schools--especially religious schools--abound in
these characteristics. It is inconceivable that schools that provide
good teaching could, as has happened in Nebraska, be shut down because
their teachers did not hold state licenses.

As for state curriculum prescriptions, it is important to remember
that no nonpublic schools, in the cases that have come into the courts,
challenge state laws requiring the old "common branches of learning,''
the components of a sound basic curriculum: English, mathematics,
civics, history, geography, etc. These schools do, however, challenge
the placing of blank-check powers to prescribe curriculum in the hands
of state boards of education or education departments.

Curriculum imposition leads too easily to content and textbook
prescription, and the schools--especially the religious schools--deeply
resent efforts by state agencies to impose value-laden curricula on
them. They note, with fear, in this connection, arguments by state
boards that socially "correct" attitudes and outlooks are as important
to impart as the three R's. Their sense of independence forces them to
reject the notion that a state agency shall have the power to impose
curricula on schools that are not funded by the state.

The great catch-all prescription area is school licensing. A license
is a permit to exist. Because the American tradition rejects the
licensing of First Amendment activities, state licensing laws are
sometimes given such Aesopian labels as "approval," "certification,"
"chartering," or "accreditation." Call it what they will, it is still
licensing. Religious schools most vehemently reject licensing. In
recent cases involving fundamentalist Christian schools, pastors (fully
willing to face jail for their beliefs) have clearly insisted that they
cannot seek a license from the state in order to carry out a church
ministry. Constitutionally, they are correct. The Supreme Court has
held the church school to be "an integral part of the religious
mission" of the sponsoring church. It has also ruled that licenses may
not be imposed upon the exercise of religious ministries.

Licensing laws inevitably vest discretionary powers over nonpublic
schools in the hands of the state bureaucracy, which is then free to
impose a vast range of conditions that must be met before the license
can be obtained. In the case Ohio v. Whisner (before the Ohio Supreme
Court found its action unconstitutional) the Ohio State Board of
Education published a volume entitled, Minimum Standards for Ohio
Elementary Schools. This "minimum" consisted of 90-odd requirements
addressing every conceivable facet of a school's existence, including
one "standard" that boldly recited: "All activities shall conform to
policies adopted by the State Board of Education."

These state prescriptions provide vivid examples of how state
regulatory measures violate educational freedom.

Compelling state interest versus entanglement in religion.

So far as religious schools are concerned, this third area of concern needs but
brief comment. The Supreme Court has long held that, before government
may limit the exercise of First Amendment liberty, it must prove that
it has a "compelling state interest" in doing so. But the Supreme Court
has also held that the Establishment Clause of the First Amendment
prohibits "excessive entanglement" between government and religious
bodies--in particular, church schools. The Court has said that
"entanglement" means such things as "continuing day-to-day
relationships'' between government and church, or "sustained and
detailed administrative relationships for enforcement of statutory or
administrative standards."

Now, state education agencies, in order to justify imposing
regulatory schemes on private schools, vigorously insist that these
regulations are indispensable. They argue that a supreme societal
interest--the well-being of children--will be sacrificed if the
regulations are not imposed. Thus, the states push hard to convince
courts that unless the schools and teachers are state-licensed, and the
curriculum state-dictated, education itself is threatened, children are
doomed, and our society is placed in the gravest jeopardy.

However, the state must also prove that its regulatory scheme will
not cause "excessive entanglements." To prove this point, the state
typically contradicts all that it says about a "compelling state
interest." It speaks of its regulatory scheme as merely "minimal." The
state says that it has no desire to involve itself in the church
school. It has no desire to monitor the school. It is not concerned
with textbooks or teacher performance. The government appears neutral,
aloof, benign, non-intrusive.

We may only hope that the courts will recognize that government
cannot have it both ways with the religious schools.

If there is a supreme societal interest in imposing the regulations,
then it follows that government must entangle itself in the school--it
must get in the classroom, monitor the teachers, prescribe the
text-books, dictate the course content. But if, to avoid such flatly
unconstitutional entanglements, it does not do these things, but allows
the school to select, for example, its own course content and
textbooks, then the state's claim of compelling state interest vanishes
as the flimsy pretense it truly is.

The governance of private education must be in the hands of the
governors of private education--the parents, churches, and other
voluntary groups whose sacrificial initiatives have brought us the
blessings of their schools.

William Bentley Ball is a constitutional lawyer who is involved in many suits on the issue of state regulation of private schools. He was lead counsel for the victorious Amish parents in the landmark U.S. Supreme Court case, Wisconsin v. Yoder.

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